Case Number: SS023958    Hearing Date: August 13, 2014    Dept: O

SS023958
VIRK v. CUIAB ET AL

Petitioner’s Petition is DENIED. The petition fails because (1) the petition fails to name real party in interest A-1; (2) the petition is incomprehensible and is seemingly unrelated to the showing made in the opening brief; and (3) substantively, the Board’s findings are supported by the weight of the evidence. The evidence in the administrative record establishes that no wages were ever paid to Petitioner and only to Petitioner’s LLC. Petitioner was performing services at the LLC’s behest and all payments for any services rendered were made to the LLC. Based on this evidence, Petitioner is not entitled to unemployment benefits because (1) he was not an employee of A-1 or Mobile when he was performing services, but an employee of his own LLC and (2) without wages paid from A-1 or Mobile to Petitioner, there is no basis upon unemployment benefits can be paid under Unemp. Ins. §§926 and 1275.

“Notwithstanding any other provision of law, the right of the director, or of any other party…to seek judicial review from an appeals board decision shall be exercised not later than six months after the date of the decision of the appeals board or the date on which the decision is designated as a precedent decision, whichever is later.” Unemp. Ins. C. §410. The Board’s decision was issued on 11/12/13. The petition was timely filed on 11/25/13.

A petition for writ of mandate must name the real party in interest, who thereafter has a right to notice and to be heard before a trial or appellate court issues a peremptory writ. See Sonoma County Nuclear Free Zone ‘ v. Superior Court (1987) 189 Cal.App.3d 167, 173. “While the real party in interest is usually the other party to the lawsuit or proceeding being challenged, it may be the person or entity in whose favor the acts complained of operates or anyone having a direct interest in the result, or the real adverse party in whose favor the act complained of has been done.” Id. Mandamus actions against a board frequently have no adverse real party in interest when the writ is sought to compel the officer or board to act in compliance with the law. Id.

Board argues the petition is defective because it fails to name real party in interest, A-1 Technology, Inc., the alleged employer. Board is correct. “An employer whose reserve account is charged with any payment made to a claimant has a direct pecuniary interest therein and may seek judicial review of the action of the appeals board.” California Portland Cement Co. v. California Unemployment Insurance Appeals Board (1960) 178 Cal.App.2d 263, 269. A-1 Technology is an indispensable party and entitled to notice and an opportunity to present arguments in this action. Petitioner is unable to add A-1, as addition of a new party does not relate back to the original complaint. The petition is therefore properly dismissed on the ground an indispensable party has not been named. See Sierra Club, Inc. v. California Coastal Commission (1979) 95 Cal.App.3d 495, 502.

The petition is two pages and there is only one short paragraph of substantive allegations. Those allegations are completely unrelated to the opening brief. The allegations state that Petitioner has evidence that could not have been previously presented, the address of Mobile Programming. The address of Mobile Programming is irrelevant to the arguments made in the opening brief. Technically, Petitioner fails to establish the claims in his petition and fails for that reason.

An administrative decision may be overturned for abuse of discretion. CCP § 1094.5. Abuse of discretion exists if the findings are not supported by the evidence, or the decision is not supported by the findings. Id.

There are two different standards of review for questions of fact depending upon whether a vested, fundamental right is involved. Where a vested fundamental right is involved, the independent judgment standard applies. Under the independent judgment standard, which applies here, the court weighs the evidence in the record independently but there is a strong presumption that the administrative findings are correct, and Petitioner bears the burden of proof that the findings are against the weight of the evidence. See Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816. The independent judgment standard applies to writ review of a decision by the California Unemployment Insurance Appeals Board. Interstate Brands v. Unemployment Ins. Appeals Bd. (1980) 26 Cal.3d 770, 774-782 (unemployment benefits affected employer’s fundamental right).

Petitioner does not challenge the factual findings made by the Board. Instead, Petitioner argues (1) Mobile Programming is not a subsidiary of A-1 Technology, Inc.; (2) he worked as controller and head of human resources for mobile programming; (3) the employment determination guide shows that an employment status exited between Mobile Programming LLC and Kavi Virk and (4) Kavi Virk requested that all payments for his work at Mobile Programming be made separate from the work KSV LLC did for A-1 Technology.

Petitioner’s arguments do not challenge the findings of the Board. The Board’s ultimate decision was based on the fact that Petitioner was only working for Mobile Programming and A-1 Technology pursuant to the Consulting Agreement between A-1 and Petitioner’s company, not Petitioner. As such, any services performed by Petitioner for A-1 and Mobile Programming were technically performed by him for his LLC. The method of payment is also consistent with this arrangement. No payments were ever made to Petitioner directly for his services. All payments were made to Petitioner’s LLC. Even if Petitioner requested that he be paid separately for his work for Mobile, that is irrelevant. Petitioner was sent to work for Mobile Programming at A-1’s request. There is no evidence in the record to dispute the Board’s findings that no wages had ever been paid to Petitioner, nor does Petitioner refute that this was the payment arrangement.

“Except as otherwise provided in this article “wages” means all remuneration payable to an employee for personal services, whether by private agreement or consent or by force of statute, including commissions and bonuses, and the reasonable cash value of all remuneration payable to an employee in any medium other than cash.” Unemp. Ins. §926. The basis of unemployment benefits is the amount of wages paid to the claimant. “Unemployment compensation benefit award computations shall be based on wages paid in the base period.” See Unemp. Ins. §1275. Without any evidence that A-1 or Mobile Programming paid him directly, there are no wages upon which any unemployment benefits may be paid.

The Board’s decision is supported by the weight of the evidence. Petitioner’s Petition is DENIED.